217 Solutions Inc.
Standard Terms and Conditions
Version Date: November 19, 2020
The following Terms and Conditions apply to business dealings with 217 Solutions, Inc (“217”), unless otherwise explicitly agreed in writing. These Terms and Conditions are incorporated by reference in the footers of 217’s emails, in sales documents, and elsewhere. By continuing to engage in business with 217 after receiving notice of these Terms and Conditions, you agree to be bound by them.
1. Authority to Contract. Only the following parties are authorized to bind, enter into or modify contracts on behalf of 217 Solutions, Inc: William “Trey” Stafford III, Colton “Colt” Moncla, Robert “Bob” Willumsen, Alisson “Al” E. Da Silva-. Contracts must be in writing to be enforceable. You agree that you will not argue that any other person has formed or modified a contract on behalf of 217 or otherwise bound 217, whether based on a theory of ostensible authority or otherwise.
2. 217’s Terms and Conditions of Sale. This Section 2 applies to every transaction in which 217 is acting as a Seller or is acting as an agent for another Seller. Without limiting the foregoing, this Section 2 specifically applies to every quotation submitted by Seller to a buyer of goods (a “Buyer”), and every acceptance by Seller of a purchase order submitted by a Buyer. Buyer and Seller are sometimes referred to in this Section 2 as the “Parties.”
2.1.1. When 217 is acting as an agent for a seller of goods, the term “Seller” refers to 217’s principal; otherwise, when 217 sells goods on its own behalf, “Seller” refers to 217.
2.1.2. “Buyer” means any buyer of goods that are sold by 217 (whether in 217’s capacity as Seller or agent for Seller).
2.2. Different or Additional Terms. Any proposal that includes different or additional terms that vary from this Section 2 are objected to and disallowed. Notwithstanding the foregoing, any such counterproposals by Buyer will not operate as a rejection of the contract of sale, but as a rejection of the additional or different term(s).
2.3. Formation of Contract. If Seller submits a quotation to Buyer that incorporates these terms and conditions by reference, then the quotation will be deemed an offer, and Buyer’s subsequent purchase order will be deemed an acceptance. If Seller does not submit a quotation to Buyer that incorporates these terms and conditions by reference, then the purchase order will be deemed an offer, and Buyer’s subsequent communication of acceptance will be deemed an acceptance. Seller may make an offer or accept an offer only by a written instrument, or in case of acceptance of an offer, by delivery of the goods ordered (and acceptance by delivery will only be binding as to the portion of the order actually delivered by Seller). Any automatic or computer-generated response to an order by Seller’s internal electronic data exchange system or otherwise will not be deemed acceptance.
2.4. Credit. Seller may, but will not be obligated to, grant credit terms to Buyer. Offer or acceptance of any credit terms is subject to final credit approval by Seller. Seller reserves the right to cancel any sale incorporating credit terms if Seller deems Buyer unable to pay for any goods. Seller reserves the right, in its sole discretion and without prior notice, to deny, change or limit the amount or duration of credit to be allowed Buyer, either generally or with respect to a particular purchase order, and may require cash payments in advance or security satisfactory to Seller.
2.5. 217’s Obligation as Seller.
2.5.1. Procurement from a Supplier. When 217 is identified in any sales document as a Seller, and not as an agent of a Seller, 217 does not maintain stock of the goods. Rather, 217’s obligation under any contract for sale is to procure the goods with clean title from a third-party supplier (“Supplier”) and cause the goods and title therein to be delivered to Buyer. Unless otherwise specified in writing, domestic deliveries will be F.O.B. Supplier’s facility (as that term is used in Tennessee’s adoption of the Uniform Commercial Code, Article 2), and international deliveries will be EXW Supplier’s facility (Incoterms ® 2020).
2.5.2. Disclaimer of Warranties. In the event of a claim by Buyer with respect to any defect or non-conformity, so long as the claim otherwise is not foreclosed by the terms hereof, Seller will assign all rights that it has with respect to a Supplier’s warranties in the goods to Buyer. Seller provides no warranties in the goods, express or implied. Specifically, but without limitation, Seller provides no warranty of merchantability or fitness for particular purpose.
2.5.3. Conformity of the Goods to Samples. All claims for defect or nonconformity of the goods must be made against Supplier, and not against Seller. If Seller provides a sample to Buyer before a purchase, and Buyer subsequently places a purchase order after receipt of the sample, Buyer will have no right to claim defect or nonconformity except to the extent that the Buyer can prove by scientific evidence supported by a third-party laboratory, engineer, or other credentialed scientific expert that the goods vary materially from the sample. If Seller offers to deliver a sample to Buyer, and Buyer does not accept, then Buyer thereby waives any claim for defect or nonconformity.
2.6. 217’s Obligations as Agent for Seller. When sales documents identify 217 as acting in the capacity as an agent for another Seller (for example, if 217 executes a document “as agent for _______”), then 217 will bear no liability to Buyer arising out of or related to the contract of sale.
2.7. Buyer’s Transportation. If the contract of sale calls for Buyer to procure transportation of the goods, the following rules in this paragraph 2.7 will apply. Buyer’s transportation must arrive at the loading location at the agreed-upon time. If the transportation does not arrive at the agreed-upon time, it may be placed in line behind other transportation, which may result in delays and increased transportation charges to Buyer. Buyer accepts all risk and responsibility with respect to such delays and charges. If the goods sold are ethanol products, Buyer’s transportation must be equipped with a properly-functioning Scully system, and neither Seller nor any Supplier will be liable for any failure of Buyer to do so.
2.8. Taxes and Other Charges. Buyer will pay all sales, use, excise or similar taxes, or other charges that Seller is required to pay or collect and remit to any Government (national, state or local) and that are imposed on or measured by the sale.
2.9. Transfer of Title. Buyer will obtain title in the goods once both (a) the goods have been fully delivered to Buyer according to the relevant trade term and (b) Seller is paid in full for the goods.
2.10. No Set-Off. Buyer will have no right of set-off or withholding, and no deduction of any amounts due from Buyer to Seller will be made without Seller’s prior, express written approval.
2.11. Limitation of Liability. No claim by Buyer of any kind including, but not limited to, claims for indemnification, whether as to quality or amount of product delivered or non-delivery, may be greater in amount than the purchase price for the goods in respect of which damages are claimed. In no event will a Party be liable to the other for any incidental, consequential, indirect, statutory, special, exemplary, or punitive damages, including, but not limited to, lost profits, loss of use, loss of time, inconvenience, lost business opportunities, damage to good will or reputation, or loss of data, arising out of, or as a result of, the sale, delivery, servicing, use or loss of the goods sold hereunder, regardless of whether such liability is based on breach of contract, tort, strict liability or otherwise, and even if advised of the possibility of such damages or such damages could have been reasonably foreseen. Furthermore, Seller will not be liable for any failure of a supplier or a logistics service provider to perform a contractual obligation or for any tort committed by any of them.
2.12. Inspection and Notice. Buyer will inspect the goods promptly upon receipt for defect or non-conformity. If Buyer intends to bring a claim against Seller and/or any Supplier for any alleged defect or non-conformity, Buyer must deliver notice of the claim in writing to both Seller and any Supplier within ten calendar days following delivery of the goods. Buyer’s failure to provide such notice will result in waiver of the claim.
2.13. Excuses for Non-Performance. If Seller is unable to perform any obligations to which they have agreed due to reasons beyond the reasonable control of Seller, , the Seller will be excused from performance to the extent of such prevention, restriction, or interference, and Seller will not be liable for default or delay in performing.
2.14. Seller’s Rights. If Buyer fails in any manner to fulfill these terms and conditions, Seller may defer further shipments until the default is cured. Remedies provided herein are in addition to, and not in lieu of, other remedies that may be available to Seller. If for any reason, the quantities of the goods covered hereby or of any materials used in the production of the goods reasonably available to Seller are less than Seller total needs for its own use and for sale, Seller may allocate its available supply of goods among its existing or prospective purchasers and/or its own departments, divisions and affiliates in any manner Seller deems proper in Seller’s sole discretion, without thereby incurring liability on account of the method of allocation determined or its implementation or for failure to perform this Agreement.
2.15. No Assignment. The contract between Buyer and Seller is not transferable by either Party without the prior written consent of the other Party, except that Seller may assign this Agreement without Buyer’s consent if the assignment is to a to an affiliate or if the assignment is carried out as part of a merger, restructuring, or reorganization, or sale or transfer of all or substantially all of Seller’s assets.
2.16. Compliance with Laws; Export Laws. Buyer and Seller will comply with all applicable international, national, state, regional and local laws and regulations with respect to their performance of this Agreement. Buyer agrees to adhere to all applicable US Export and anti-corruption laws and regulations with respect to the goods and third party interactions.
2.17. Controlling Terms. All purchase orders and invoices between the Seller and any other Parties shall be subject only to the terms and conditions hereof. In the event that the terms of any such purchase order, confirmation or similar document, conflicts with, or are in addition to these terms and conditions, the terms and conditions contained herein shall govern unless both parties otherwise agree to separate terms in writing. Separate terms must be authorized pursuant to Article I of this document to be valid and binding.
2.18. Miscellaneous. These term and conditions, together with the offer and acceptance, are the sole and exclusive statement of the parties’ understanding and agreement with respect to the transactions contemplated by this sale and supersede all prior and contemporaneous agreements, representations, promises, and understandings. The contract of sale may be modified or changed only in a writing signed by authorized representatives of both Parties. Only the corporate officers identified in Article 1 of these terms and conditions shall have authority on behalf of 217. No waiver by a Party of the contract of sale will constitute or be deemed to be a waiver in any other case. No waiver will be deemed to occur as a result of the failure to enforce any term or condition of the contract of sale. If any clause or portion of the contract of sale is held to be illegal, invalid, or unenforceable, the remaining clauses or portions will remain in full force and effect.
3.1. Arbitration. If any controversy or claim, whether based on contract, tort, statute, or other legal or equitable theory (including any claim of fraud, misrepresentation, or fraudulent inducement), arises between or among the Parties, (a “Dispute”), the Parties will resolve the Dispute by arbitration. The arbitration will be pursuant to the then-current rules and supervision of the American Arbitration Association. The arbitration will be held in Shelby County, Tennessee, before a single arbitrator who is knowledgeable about the laws and practices relating to trade. If the contract is for an international sale, the arbitrator must be knowledgeable about the laws and practices relating to international trade.
3.2. Governing Law. This Agreement will be construed and governed in accordance with the laws of the State of Tennessee. The United Nations Convention on Contracts for the International Sale of Goods will not apply.
3.3. Discovery in Arbitration. The arbitrator may order the Parties to exchange copies of non-rebuttal exhibits and copies of witness lists in advance of the arbitration hearing. The arbitrator has no other power, however, to order discovery or depositions.
3.4. Arbitrator’s Decision. The arbitrator’s decision and award are final and binding and may be entered in any court having jurisdiction.
3.5. Attorneys’ Fees. Each Party will bear its own attorneys’ fees associated with arbitration, and other costs and expenses will be borne as provided by the rules of the American Arbitration Association. If court proceedings to stay litigation or compel arbitration are necessary, the Party against whom the proceedings are brought must pay all associated costs, expenses, and attorneys’ fees reasonably incurred by the other party.
3.6. Confidentiality. Neither a Party, witness, nor the arbitrator may disclose the facts of the underlying dispute or the contents or results of any negotiation, mediation, or arbitration without the prior unanimous written consent of the Parties, except as necessary (and then only to the extent required) to enforce or challenge a settlement agreement or arbitration award or to comply with legal, financial, or tax reporting requirements.
3.7. Limitations on Actions. No Party may bring a Dispute more than six months after the later of (a) the date the cause of action accrues, or (b) the date that the Party could have reasonably discovered the basic facts supporting the claim.